SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 54
June 18, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

2010 INTELLIGENCE AUTHORIZATION PENDING

Last month the Director of National Intelligence transmitted to Congress the Obama Administration's proposed language for next year's Intelligence Authorization Act. This week, the Administration forwarded several additional proposals. To its credit, the Senate Intelligence Committee has made this material available for public review on its web site.

Unsurprisingly, the proposed language would generally tend to expand intelligence agency authority while relaxing existing controls.

For example, the draft bill would grant the DNI a new exemption under the Freedom of Information Act for "operational files." Under this provision, if an intelligence agency that has its own operational file exemption transfers an operational file to the ODNI, the transferred information would retain its exempt status. (Normally, operational file information that is disseminated beyond the originating agency would lose its exemption from review under FOIA.)

In order to preserve the security of intelligence sources and methods and to promote information sharing, DNI Blair testified last month, "It is imperative that those [operational] files are accorded the same protections at the ODNI as they are accorded at the CIA [for example]."

Recent experience suggests otherwise, however. In 2005, FAS sought certain unclassified budget records from the National Reconnaissance Office, which the NRO denied because it said they were "operational files." We challenged that position in a FOIA lawsuit and a court ruled that the NRO's claim to an operational file exemption was not valid due in part to the fact that the document had been disseminated outside of the agency to the ODNI. More than a hundred partially redacted pages were found to be releasable.

At least a few lessons emerge from this episode: First, it appears that intelligence agencies have a tendency to invoke the operational files exemption more broadly than is justified, in an attempt to exclude releasable records from processing under the FOIA. Second, the loss of the NRO's operational file exemption in this case had no adverse effect on information sharing within the intelligence community. The NRO did not and could not have stopped sharing its budget documents with the ODNI. Third, the processing of these records under FOIA did not result in any uncontrolled release of classified information or of sensitive intelligence sources and methods. It just didn't.

Aside from the operational files exemption, the Administration's draft intelligence authorization bill also would exempt the ODNI from the open meeting requirements of the Federal Advisory Committee Act. It would cancel several existing reporting requirements. And so forth.

Here are a few hypothetical secrecy reform provisions that were not included in the Administration's draft bill:

CONGRESSIONAL ACTION ON SECRECY

The Senate on June 17 passed a bill sponsored by Senators Joseph Lieberman and Lindsey Graham that would exempt from the Freedom of Information Act certain photographs documenting the abuse of detainees held in U.S. custody. Senator Graham said that if the bill was not enacted into law, the Obama Administration had assured him it would classify the photos to prevent their release. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day," he said.

Strictly speaking, however, classification alone is not sufficient to exempt any such record from the FOIA. It must also be "properly classified," and that is a determination that is to be made by a court of law.

Senate Jay Rockefeller introduced a bill to limit the abuse of the "sensitive security information" (SSI) marking to withhold certain health and safety information from the public. "When an industrial emergency happens and threatens the lives of residents, workers and first responders, I absolutely believe the public has the right to receive important information about what it means for them and their health," he said. "Period."

Strictly speaking, again, the bill does not modify the definition of "sensitive security information" nor does it even place public health and safety considerations on an equal footing with security. Rather, it simply prohibits the deliberate, witting abuse of the SSI control marking.

The Senate Judiciary Committee again postponed its consideration of the State Secrets Protection Act (S.417) that would limit the ability of the executive branch to terminate litigation by invoking the privilege. Senator Orrin Hatch outlined his opposition to the bill in a floor statement last week. "Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee," he warned on June 10.

RESOURCES ON NUCLEAR POLICY

The U.S. Air Force last month issued revised doctrine on "nuclear operations," incorporating the conclusions of the 2001 Nuclear Posture Review. But it is nearly obsolete upon release, since a new Nuclear Posture Review that will presumably lead to a revised policy is already underway. The new Air Force doctrine may be of interest nevertheless, since it presents an Air Force perspective on enduring issues of nuclear deterrence and nuclear command and control in easily understandable, mostly jargon-free terms. See "Nuclear Operations," Air Force Doctrine Document 2-12, May 7, 2009:

The text of a proposed agreement between the United States and the United Arab Emirates concerning cooperation in the peaceful uses of nuclear energy was transmitted by the White House to Congress last month, along with assorted supporting materials.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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